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because the return does not raise the question, whether, if either of the ecclesiastical parishes or districts had appointed a Burial Board, that would have ousted the vestry and the Burial Board of the common-law parish. But sect. 5 of stat. 20 & 21 Vict. c. 81. is cogent and conclusive to shew that, in the absence of this subsequent legislation, the vestry and Burial Board of the parish would have had full power over the whole parish; because the proviso assumes that, but for it, the powers of the vestry and Burial Board of the whole parish would remain unaffected.
I have, therefore, no doubt that, under stat. 15 & 16 Vict. c. 85., the vestry of the whole parish had power to appoint a Burial Board, and that the Board so appointed might exercise all the powers given to a Burial Board under that Act, with reference to the burial ground established under it, through the entire area formed by the component parts of the parish.
CROMPTON J. I also am of opinion that the return is bad. It amounts to no more than that the parish of Walcot has been divided into three parishes or districts for ecclesiastical purposes under the Church Building Acts. We must take the appointment of this Burial Board to have occurred after the passing of stat. 20 & 21 Vict. c. 81. and before the passing of stat. 23 & 24 Vict. c. 64. ; so that the latter statute cannot apply. Then, it is clear, upon the construction of stat. 15 & 16 Pict. c. 85., which has been extended to the whole of England by stat. 16 & 17 Vict. c. 134., that the bodies to appoint the Burial Board are the vestries for secular purposes, which are the vestries for the whole parish, they alone having control over the poor rates. It appears from the interpretation clause, sect. 52, and the whole tenor
of the Act, together with Schedule (A) in which parishes 1862. known to be divided into ecclesiastical districts are The Queen specified, that the policy of the framers of the Act Overseers of was to make this a matter for the vestry having the regulation of secular matters in a parish, and not merely for those connected with ecclesiastical duties and the established church, because the persons charged with the expences of providing a cemetery for all Her Majesty's subjects in the parish are not merely those who resort to church, but all who contribute to the poor rates. And it is a strong argument that the Legislature, in every case in which the Act is to apply, prescribes how the necessary funds are to be raised; whereas an ecclesiastical parish or district not having a poor rate has no means of raising them under that statute. Where two or more parishes maintaining their poor have provided one Burial Board for their common use under sect. 23 there is no difficulty, because the joint Burial Board may make their orders on the several parishes, and so charge the rates with the expences incurred in providing and maintaining the common burial ground; but, under that statute, the smaller ecclesiastical parish or district could not affect the poor rate which the vestry would lay on the entire parish. Therefore it is clear that under stat. 15 & 16 Vict. c. 85., if it stood alone, the power of appointing a Burial Board for the whole parish is in the parochial authorities of the whole parish.
Then is the case within any of the enactments in the later Acts? It appears to me that the later Acts intend to bring back this matter more within the ecclesiastical authorities wherever there exists a common bond of union. Stat. 18 & 19 Vict. c. 128. s. 11. has that effect when several parishes have been united together for
ecclesiastical purposes. Then sections 12 and 13 are
Then, the return not being good under either of the preceding statutes, we come to stat. 20 & 21 Vict. c. 81. s. 5., which repeats very nearly the enactment in sect. 12 of stat. 18 & 19 Vict. c. 128., extending it to new parishes and districts, which previously had not had a separate burial ground; it enacts “that the vestry, or meeting in the nature of a vestry, of any parish, new parish, township, or other district not separately maintaining its own poor, and which has had no separate burial ground, may appoint a Burial Board.” The word "may,” in some cases, has been rightly construed to mean “must,” as where judicial powers are to be exercised on a given state of facts; but here the enactment appears to me to be permissive only, giving the vestry of the smaller ecclesiastical parish or district power, if it chooses, to appoint a Burial Board; "and such vestry or meeting, and the Burial Board appointed by it, shall exercise and have
all the powers” given under stat. 18 & 19 Vict. c. 128. This therefore would give the smaller ecclesiastical parish or district power to appoint a Burial Board. And then what is to happen? The proviso says, “ all the powers of any other vestry or meeting and Burial Board, if any,” (having reference to the former legislation and to the possibility of the existence of a vestry or Burial Board for the larger area in which the ecclesiastical parish or district was included), “ shall then cease and determine, so far as relates to such parish, new parish, township, or district,” that is, when the smaller ecclesiastical parish or district has exercised its option and made an appointment; and until then it is clear that all the powers of the former body continue. These words shew that, unless brought within the category of the latter part of the section, their powers were not to cease.
It is therefore, as I have said, sufficient for the determination of the present case that, according to this return which is to be construed strictly, neither ecclesiastical District has made any appointment. At the same time it is important to notice, as the Lord Chief Justice has observed, that such appointment would not affect any powers already exercised by them; for instance, if they had charged the whole parish, that charge would remain binding, though the smaller ecclesiastical District, if they wished, might have a Burial Board and a separate burial ground. I do not see anything in the section to relieve them from a liability or obligation incurred before they exercised the option of appointing a Burial Board.
The only other point is on stat. 23 & 24 Vict. c. 64. s. 1., which had not passed when this Burial Board was appointed; and therefore does not alter the law under which it was appointed.
On all these grounds I am of opinion that the return is bad.
BLACKBURN J. I also am of opinion that, on the return to this mandamus, our judgment ought to be for the Crown.
The original statute, 15 & 16 Vict. c. 85., was passed with reference solely to the metropolis, and appears to have been drawn with consideration ; for there has been no litigation on it, and it seems to work satisfactorily. The Legislature chose to extend these laws concerning the burial of the dead beyond the limits of the metropolis; and, instead of passing a new statute applicable to the exigencies of parishes throughout the country, they merely enacted, by stat. 16 & 17 Vict. c. 134. s. 7., that certain provisions of the metropolitan Act should extend and be applicable to and in respect of any parish not in the metropolis. This was soon found not to work well. And, as difficulties occurred, the Legislature, instead of introducing a new and complete statute, have from time to time passed amending statutes; and the consequence is that there are, I believe, six statutes, applying to this subject-matter, to be read together, and reconciled, if possible. It is, therefore, no wonder that difficulties should arise in construing the different sections of these statutes. But, in the present case, on the point actually in question there is no difficulty.
The writ recites that a Burial Board had been constituted for the parish of Walcot, and, primâ facie, Walcot is a parish in every sense of the word so as to be entitled to appoint a Burial Board. The return is confined to this : That before the Burial Board was appointed the parish of Walcot had been divided into three sub-parishes, for ecclesiastical purposes, under stat. 58 G. 3. c. 45.